Real Estate Law - SCJ

The applicant unit owner sought an oppression remedy against the respondent condominium corporation due to excessive noise and vibrations emanating from an adjacent garbage room.

The applicant endured the noise for over a decade while the corporation responded in a delayed and piecemeal fashion, eventually halting approved remediation work when the application was commenced.

The court found that while the applicant did not provide expert evidence to prove the corporation's proposed remediation plan was inadequate, the corporation's inexcusable delay and retaliatory stoppage of work unfairly disregarded the applicant's interests.

The court awarded $30,000 in damages for oppression and ordered the corporation to complete the approved remediation work.

In a receivership proceeding, a dispute arose between a condominium purchaser and the vendor regarding liability for standard closing adjustments.

The purchaser argued he should be indemnified for borrowing costs, interest, and carrying costs due to the vendor's failure to provide clear title.

The court held that the agreement of purchase and sale expressly precluded any set-off against the purchase price or adjustments.

The purchaser was ordered to pay the closing adjustments, without prejudice to his right to seek indemnity in a separate claim.

The plaintiff purchased property from the defendant church to build social housing.

Prior to the sale, the church retained the defendant environmental consultant to conduct a Phase I Environmental Site Assessment.

The consultant's report, which contained a standard disclaimer clause limiting liability to third parties, was provided to the plaintiff by the church without the consultant's knowledge or consent.

After closing, the plaintiff discovered soil contamination and sued the church and the consultant for negligent misrepresentation.

The consultant moved for summary judgment.

The court granted the motion, finding that the disclaimer clause effectively excluded any duty of care owed to the plaintiff, and dismissed the action and crossclaims against the consultant.

The plaintiff sought an interlocutory injunction to restrain the defendants from blocking access to her driveway via a gravel roadway on the defendants' property.

The defendants argued the Road Access Act did not apply because an undeveloped right of way provided alternate access.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding the application of the Road Access Act, irreparable harm to the 75-year-old plaintiff due to lack of emergency and service vehicle access, and that the balance of convenience favoured granting limited interim access.

The court ordered the defendants to remove obstructions and permitted the plaintiff restricted use of the roadway until January 2023 to allow for the construction of a new driveway on the right of way.

The plaintiffs brought an action alleging that the defendants' boathouse, located in the water in front of the plaintiffs' shoreline, interfered with their riparian rights of access.

The court found that the boathouse did significantly restrict the plaintiffs' riparian rights.

However, because the boathouse had been in its location for over 50 years, the court held that the plaintiffs' claim was statute-barred and extinguished by the 10-year limitation period under sections 4 and 15 of the Real Property Limitations Act.

The court declined to read the discoverability principle into the RPLA.

The action was dismissed.

The applicant sought leave to appeal an arbitration award concerning the division of proceeds from the sale of a jointly owned property.

The arbitrator had credited the respondents with $30,730 for construction costs incurred prior to the execution of Minutes of Settlement.

The Superior Court of Justice granted leave to appeal, finding that the arbitrator made an extricable error of law by ignoring the plain wording of the Minutes of Settlement, which reset the parties' rights as of the date of execution.

The appeal was allowed, and the arbitration award was varied to remove the $30,730 credit.

The respondents brought a motion to stay the applicant condominium corporation's application to enforce a settlement agreement regarding shared amenities.

The respondents argued the dispute was subject to mandatory mediation and arbitration under section 132 of the Condominium Act, 1998 and the parties' Reciprocal Agreement.

The court applied the Haas framework and found that the dispute fell within the scope of the arbitration agreement.

The motion was granted and the application was stayed in favour of mediation and/or arbitration.

Following a judgment for breach of a commercial lease, the plaintiff landlord sought prejudgment interest and costs.

The court awarded prejudgment interest at the contractual rate of prime plus five percent, rejecting the tenant's argument that his self-represented status constituted an exceptional circumstance.

The court also awarded substantial indemnity costs from the date of the landlord's offer to settle, as the trial judgment exceeded the offer.

Costs were fixed at $128,000, reduced from the claimed amount due to proportionality concerns.

The plaintiff bank brought a motion for summary judgment against the defendant arising from a mortgage default.

The defendant admitted liability in her statement of defence, citing a failure to obtain financing from a third-party lender, and did not respond to the motion.

The court found no genuine issue requiring a trial and granted the plaintiff possession of the property along with judgment for the outstanding amounts of $3,090,690.54 and $778,656.22, plus interest and costs.

The plaintiff bank moved for summary judgment following the defendant's default on a mortgage loan.

The defendant admitted liability in her statement of defence, attributing the default to a third-party lender's failure to provide financing, but did not respond to the motion.

The court found no genuine issue requiring a trial and granted summary judgment for possession of the property and repayment of the outstanding debt totaling over $2.8 million, plus interest and costs.

The plaintiff, a real estate developer, moved for leave to register a certificate of pending litigation (CPL) against a property purchased by the defendants.

The plaintiff alleged the defendants used its confidential strategic development plan to acquire the property, breaching a confidentiality agreement, and sought a constructive trust.

The court found the plaintiff raised a triable issue regarding an interest in the land based on breach of confidence and unjust enrichment.

However, the court declined to grant the CPL, finding the property was not unique, damages were an adequate and calculable alternative remedy, and the potential harm to the defendants' financing outweighed the harm to the plaintiff.

The plaintiff estate trustee brought a motion for summary judgment seeking payment on two vendor take-back mortgages and a writ of possession for the secured property.

The self-represented defendants claimed the mortgages had been paid in cash and produced discharge documents allegedly signed by the deceased.

The court found the defendants' evidence lacked credibility, contradicted objective banking and email records, and concluded the discharge documents were forgeries.

Summary judgment was granted, ordering payment of the outstanding mortgage debts, substantial indemnity costs, and a writ of possession.

The applicant tenants brought an application for the interpretation of a commercial lease regarding parking rights and the payment of additional rent for utilities.

The court held that the lease clearly restricted the use of outdoor parking spaces to customers and visitors, denying the tenants' employees the right to park there.

However, regarding electricity costs, the court found the lease ambiguous and applied the contra proferentem rule against the respondent landlord, ruling that the tenants should pay based on actual usage rather than a proportionate share of square footage.

Success being divided, the parties were ordered to bear their own costs.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim regarding the unauthorized discharge of a mortgage held in his self-directed RRSP.

The court found that the plaintiff's claim against the third-party mortgagors was statute-barred under the Real Property Limitations Act, meaning the plaintiff suffered no recoverable loss from the defendants' actions.

Alternatively, the court found that the plaintiff had actually agreed to the discharge in 2007.

The action was dismissed, but the successful defendants were denied costs due to their failure to properly document the discharge and inform the plaintiff.

The applicant sought to discharge a $50,000 mortgage registered against his property by the respondent.

The respondent, operated by the son of the applicant's former lawyer, brought a counter-application seeking repayment of various loans.

The court declined to join the proceedings, finding the counter-application required a trial.

On the main application, the court found the mortgage was invalid and unconscionable because there was no contract for debt, the applicant was unaware of the mortgage, and there was an undisclosed relationship between the applicant's lawyer and the lender.

The mortgage was ordered discharged and the counter-application was converted into a separate action.

The plaintiffs, investors in a real estate development, sought to register a Certificate of Pending Litigation (CPL) against three lots and to register a preservation order regarding a vendor take-back mortgage on title.

The property had been sold to a third-party developer, Brampton G&A. The court dismissed the motion, finding that the parties had previously agreed not to register orders on title, the property was an investment property rather than unique, and the existing preservation order requiring mortgage payments to be paid into court provided sufficient protection without encumbering the third party's title.

The plaintiffs, individual unit owners in a retirement condominium, brought a motion for summary judgment claiming the defendants acted oppressively.

The defendants, who owned the majority of the units, managed the condominium, and provided services, were not requiring their own tenants to pay the mandatory service fees that the plaintiffs were required to pay under the condominium declaration and bylaws.

The court found that the defendants' conduct was unfairly prejudicial and unfairly disregarded the plaintiffs' interests, as it violated their reasonable expectation that all occupants would be treated equally.

The court ordered that the declaration and bylaws be enforced, requiring all occupants to enter into the same services agreement, but declined to award damages or alter the board's composition.

Following the dismissal of the Town of Richmond Hill's motion for an interlocutory injunction regarding alleged zoning bylaw infractions, the successful respondents sought partial indemnity costs of $3,851.04.

The Town argued that costs should be reserved to the trial judge or made payable in the cause, and disputed the quantum.

The court rejected the Town's arguments, finding no compelling reason to depart from the ordinary rule that a successful party on a motion is entitled to costs payable forthwith.

The court fixed costs at the requested amount of $3,851.04.

The plaintiffs (sellers) and defendants by counterclaim (real estate agents) brought motions for summary judgment regarding an aborted real estate transaction.

The buyers had refused to close after discovering the lot depth was 23% smaller than advertised, claiming they intended to demolish the house and build a larger one.

The sellers argued this intention was fabricated and the mistake did not go to the root of the contract.

The court dismissed the motions for summary judgment, finding that assessing the credibility of the buyer's stated intention required a trial.

The plaintiff vendor brought a motion for summary judgment against the defendant purchaser for failing to close a real estate transaction.

The purchaser had entered into an unconditional agreement of purchase and sale but failed to close because she could not sell her own property in a cooling market.

The vendor relisted and sold the property for a lower price and sued for the difference and carrying costs.

The court granted summary judgment, finding the purchaser breached the agreement and the vendor reasonably mitigated her damages by reselling the property at fair market value.